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NYCLU Victory Preserves Right to Walk Around Without ID, Take Photos on NYC Subway

March 22, 2013 — A federal judge has ruled that a New York City Transit Authority rule requiring people using the city’s transit system to carry ID is unconstitutional. The decision is a victory for the New York Civil Liberties Union, which filed a lawsuit in November, 2011 defending the public’s right to take photographs in the subway system without fear of being arrested or having to show identification to police.

“This decision is a victory for the freedom of people to walk around free from showing their papers, a core American right,” said NYCLU Staff Attorney Mariko Hirose. “It’s past time for the NYPD to learn about the Constitution and stop harassing and even arresting people for exercising their basic rights.”

The lawsuit was filed in U.S. District Court for the Eastern District of New York on behalf of Steve Barry and Michael Burkhart, railroad enthusiasts and photographers who were unlawfully arrested in August 2010 while taking photos of subway trains at the Broad Channel subway stop in Queens. At the time, they were awaiting the arrival of a vintage subway train on display by the New York Transit Museum. They both were charged with unlawful photography, and Barry was handcuffed and charged with failing to produce ID in violation of a Transit Authority rule.

The NYCLU successfully argued that a Transit Authority rule requiring people using the city’s transit system to carry ID documents is unconstitutional. Over the last 10 years, 6,542 summonses have been issued to people who failed to provide identification under the ID rule.

Barry is the editor of Railfan & Railroad Magazine, a monthly publication for railroad enthusiasts. He also manages the website www.railroadphotographer.com. Burkhart is a friend and both are members of the National Railway Historical Society. New Jersey residents, they traveled to New York City on Aug. 21, 2010 for a scheduled run of one of the Transit Museum’s vintage subway trains. These exhibitions are popular among photographers.

While waiting for the vintage train, the plaintiffs were taking photos of regular subway trains. A police officer approached them and told them that they were not allowed to take photographs in the subway system. Barry asked the officer to identity the city statute that they were violating. Instead, the officer demanded ID from both men. Barry gave his name and address but did not present identification. The officer handcuffed Barry and searched his pockets.

“I never imagined that I’d get arrested for taking pictures of a subway train,” Barry said. “It was a humiliating experience, and I hope this lawsuit will prevent other people from enduring similar mistreatment.”

Both men, who had never previously been arrested, were detained in the subway station’s waiting area for about a half hour. Barry was handcuffed the entire time.

Barry and Burkhart were issued summonses charging them with taking “unauthorized photos,” though the transit rule the officer cited states that photography is permitted in the transit system. Barry also was issued a summons for violating the Transit Authority rule requiring people to carry ID. The New York City Transit Adjudication Bureau later dismissed all the charges. As a result of their arrests, Barry and Burkhart stopped coming to New York City to photograph in the subway system.

In addition to Hirose, NYCLU Associate Legal Director Christopher Dunn was counsel on the case. Claudia Angelos, Andrew Avorn, Timothy Taylor-Hurley and Eleanor Spottswood of the NYU Law School Civil Rights Clinic worked on the case as well.